Dickens v. Tisdale

• Court: Arkansas Supreme Court
• Writing for the Court: HOLT, J.
• Citation: Dickens v. Tisdale, 164 S.W.2d 990, 204 Ark. 838 (Ark. 1942)
• Decision Date: 19 October 1942
• Docket Number: 4-6838
• Parties: DICKENS v. TISDALE

164 S.W.2d 990

204 Ark. 838

DICKENS v. TISDALE

4-6838

Supreme Court of Arkansas

October 19, 1942

Appeal from Columbia Chancery Court, Second Division; W. A. Speer Chancellor: affirmed.

Decree affirmed.

Jack Machen, for appellant.

Stevens & Cheatham, for appellee.

Melvin T. Chambers, amicus curiae.

OPINION

HOLT, J.

Emma Dickens Tisdale died testate in Columbia county, Arkansas August 31, 1940. Appellants are the only heirs of J. L. and Amanda Dickens, deceased. Appellant, W. C. Dickens, is the brother of the testatrix, Emma Dickens Tisdale, and appellants, J. W. and J. H. Dickens, are her nephews. Appellee, W. O. Tisdale, is her surviving husband. Under the terms of her will she disposed of all of her property. Following the preamble, the will contains eight numbered paragraphs.

This litigation involves the construction of that part of paragraph four which is as follows: "Four: Of the remaining royalty acres of which I may die seized and possessed, I give unto the heirs of J. L. and Amanda Dickens deceased, thirty-five royalty acres to be vested in said heirs of J. L. and Amanda Dickens forever; it being understood the rents, royalties and all other proceeds of this thirty-five acres are to be my husband's until his death."

In the trial below and here on appeal (quoting from appellants' brief) appellants' contention was, and is, "that under this paragraph of said will, and upon the death of the testatrix, they became vested with the fee simple title to an undivided 1/32nd part of all the oil, gas and other minerals underlying the lands left by the said Emma Dickens Tisdale, deceased, with the right to use and enjoy the same when produced, if ever; and, that the limiting clause, 'it being understood the rents, royalties and all other proceeds of this thirty-five acres are to be my husband's until his death,' is void as being an attempt on the part of the testatrix to deprive the estate, first given, of all of its essential legal properties and as being inconsistent with and repugnant to the preceding grant to them in fee."

It was the contention of appellee, W. O. Tisdale, husband of the testatrix, that under the provisions of paragraph four, supra, he acquired a life estate in the thirty-five royalty acres mentioned therein, and that appellants only acquired a remainder over after the termination of his life estate. This contention of appellee, Tisdale, was upheld by the trial court, and we think correctly so.

The general rule in the construction of a will, running through a long line of our cases, is clearly stated in the very recent case of Rufty v. Brantly, ante, p. 32, 161 S.W.2d 11, wherein we said: "All the cases are to the effect that the primary purpose of construing a will is to arrive at the testatrix's intention in making it, and the rule of construction applicable in all cases is that the will should be read in its entirety, from its four corners, as many cases express the thought"; and also in Bowen v. Frank, 179 Ark. 1004, 18 S.W.2d 1037, where it is said: "The purpose of construction of a will is to ascertain the intention of the testator from the language used, as it appears from consideration of the entire instrument, and, when such intention is ascertained, it must prevail, if not contrary to some rule of law, the court placing itself as near as may be in the position of the testator when making the will. Fitzhugh v. Hubbard, 41 Ark. 64; Gregory v. Welch, 90 Ark. 152, 118 S.W. 404; Cockrill v. Armstrong, 31 Ark. 580; Smith v. Bell, 31 U.S. 68, 6 Pet. (U. S.) 68, 8 L.Ed. 322. See, also, Norris v. Johnson, 151 Ark. 189, 235 S.W. 804; Lockhart v. Lyons, 174 Ark. 703, 297 S.W. 1018." See, also, the case of Sheltering Arms Hospital, et al., v. Shineberger, 201 Ark. 780, 146 S.W.2d 921.

We think it clear that the testatrix intended by the words "it being understood the rents, royalties and other proceeds of this thirty-five acres are to be my husband's until his death" to so limit the estate conveyed to appellants in the preceding clause that it would not take effect until her husband's death. In other words, the estate which she did convey to appellants was the remainder over in the thirty-five royalty acres in question upon the termination of the life estate of her husband, W. O. Tisdale. It will be observed that this clause is only separated from the preceding clause by a semicolon and is a part of the same paragraph--and being the last clause, it will control the intention of the testatrix. If further evidence be needed that such was her intention, we find in paragraph three of the will that Mrs. Tisdale, the testatrix, devised to each of the three appellants and other kinsmen, two royalty acres in other land which was to take effect immediately upon her death, and not at the death of her husband, and in a separate paragraph-- paragraph four...